‘Judges should never hold back from publicly defending their independence’

A leader of African National Congress and one of the architects of the Constitution of South Africa, author Albie Sachs is a leading voice for democracy and human rights in the world. As a young lawyer in Cape Town at 21, Sachs began defending people arrested by the apartheid regime. Author of several books, including The Jail Diary of Albie Sachs, Soft Vengeance of a Freedom Fighter, The Strange Alchemy of Life and Law and We, the People: Insights of an Activist Judge, he was one of the prominent speakers at the recent Jaipur Literature Festival. Sachs spoke with Faizal Khan about the right to protest and the importance of the Constitution against populism, racism and xenophobia. Edited excerpts:

You were one of the writers of the Constitution of South Africa. The constitutions of which countries provided you the most inspiration and material?
It was very much homegrown, but we drew on the American, Canadian, German and Namibian Constitutions—probably most on the Namibian.

In the 21st century, how are constitutions holding up against populism, nationalism and racism across the world?
In many countries, the Constitution is proving to be the main bulwark against populist incitements, racism and xenophobia. Democratic forces can rally around the Constitution and overcome their political differences in defence of the Constitution, and use the instruments created by the Constitution.

You became an activist of human rights and freedom of expression at the age of 17 during the apartheid regime in South Africa. Almost 70 years later, young people at your age then are on the streets in many countries protesting against racism and freedom of expression facing the heavy hand of state power. Your thoughts.
I see the young Albie in the faces of the young people protesting today. In most cases they don’t have to put their bodies on the line in the way that we had to. There is much greater risk to them of assassination and torture. They must use the space available to them to push beyond what we were able to achieve.

What about the right to protest peacefully and stage mass demonstrations like Mahatma Gandhi and many other world leaders did to secure freedom for their countries? Is that right under threat today with protests considered by many governments as anti-national?
Yes, the right to protest has been hard-won. We built our Constitutional Court in South Africa on the site of the prison where both Mahatma Gandhi and Nelson Mandela were locked up. I am happy to say that the court has consistently upheld the right to protest. When I was a Justice on the court we told the police not to stop protesters from coming to the square but the court but asked them to ensure that their singing and chanting did not make it impossible for us to hear counsel addressing us in the court. The protesters agreed, and some of their leaders came inside and closely attended the proceedings.

Are there enough safeguards for strong and independent institutions like judiciary and media that a constitution could guarantee when powerful governments and leaders veer away from normal governance?
It is always a battle. So much depends on the leadership given by political parties. But often it is civil society that has to be the most vocal. Judges should not hold back from publicly defending their independence. At the same time they must conduct themselves with dignity, integrity and transparency. Similarly, the media should carry out their vital work with integrity, respect for the truth and careful checking of their facts.

How do you view modern-day protests and activists of movements like climate change action and internet privacy?
So much depends on the context. I recently helped to organise a green protest by inviting people simply to come and have a picnic in a pristine coastal area threatened with completely inappropriate commercial development. Our weapons were watermelons and traditional local delicacies. I am sorry to say that I am not modern enough myself to comment on actions in relation to internet privacy.

What are the moments of your fight against apartheid laws and protecting people that you most remember?
The darkest moment was collapsing on the floor after sleep deprivation with police interrogators pouring water down on my face and then prizing open my eyes. There were two extremely joyous moments. The first was after I had been blown up by a bomb placed in my car by South African security agents in Mozambique, and I realised that I was safe in the Maputo Central Hospital and had only lost an arm. The second was when I was part of the crowd in front of the Union Buildings in Pretoria and saw Nelson Mandela being declared President of South Africa as Defence Force planes roared overhead.

Does the world today miss leaders like Gandhi, Nelson Mandela and Martin Luther King?
The world always needs leaders like them. Yet each one was unique. And in a way, all of them were more honoured by the world after their deaths than during their lives. I am sure today we have many leaders of great calibre all over the world.

Faizal Khan is a freelancer